P L D 1948 Lahore 417 (PLP)

CORNELIUS, J.‑‑This is a second appeal by the Punjab Province, the respondents being Pola, Said Ahmad, Mubarak and Rahmat Din, all non proprietors of village Paurmiana in the Campbellpur District, for them selves and on behalf of about 200 other non‑proprietors of the village. The suit was brought by the non‑proprietors against the Government, upon the allegation that the Government had obstructed the plaintiffs from excavating stones from two places in the village, viz., Khasra No. 591 known as "Pari" (outcrops of stones, etc., in a hilly region (and Khasra No. 1104 which is described as "Pahar", i.e., hill or hillock. The plaintiffs claimed an absolute right through long and unobstructed user to remove stones for their own use without payment of any royalty to Government from these areas. The Government, on the other hand, while challenging the right of the plaintiffs as non‑proprietors to remove stones from the land in question based its defence mainly on the pro visions of section 42, Punjab Land Revenue Act, 1887, and the Punjab Minor Minerals Rules. The first Court held that the claim of royalty by the Punjab Province was in order, and accordingly dismissed the suit, but on appeal the Senior Sub‑Judge reversed this decision and decreed the suit against the Government with costs. The first Court had held that as the plaintiffs were not proprietors, they could not as of right excavate stones from the land in question which was entered as being owned by the proprietors, and in this respect, has regarded as immeterial the fact that a few of the proprietors had appeared in evidence to state that they did not object to the practice. On this point, the learned Senior Sub‑Judge held that the plaintiffs had right to sue the Govern ment so as to prevent interference with their own activity which was in accordance with long‑standing practice, and the Government could not take up a plea which was only open to the proprietors. As regards the right to levy royalty, the learned Sub‑Judge relied on Rule 3 of the Punjab Minor Minerals Rules, which sets out that no person shall quarry any minerals belonging to Government from land whether privately owned or belonging to Government, without a permit with the proviso that if the minerals were proved to belong to the landowners as provided in section 42 of the Punjab Land Revenue Act, no permit would be necessary. Minerals for the purposes of the Punjab Minor Minerals Rules include stones. It is in the application of section 42 of the Punjab Land Revenue Act to the facts relating to the two plots of land in question that there is difference between the Courts below, and the case in fact turns upon the construction to be placed on the wajib‑ul‑arz prepared in respect of the village, and in relation to the right here in dispute at three successive settlements; viz., these of 1884‑88, 1902‑03 and 1923‑

24. Section 42 of the Punjab Land Revenue Act is divided into four -subsections of which the first, third and fourth subsections appear to me to relate to a single subject, while the second subsection relates to a different subject. The first subsection provides that if in any record of rights (of which the wajib‑ul‑arz forms part) completed before the 18th November 1871, no express provision is made that inter alia any quarry belong to the landowners, such quarry shall be presumed to belong to the Crown. The necessary condition for the application of the subsection is that there should have been a quarry in existence on the 18th November 1871, and that there should be no express provision in the record of rights that the quarry belonged to the landowners ; if both these conditions were satisfied the quarry was to be presumed to belong to the Crown. Subsection (3) and (4) relate to the rebuttal of the presumption created by subsection (1). This may be effected by showing from the records of the assessment report or by comparison of the assessment of the village with similar villages where no quarry or other interest in land dealt with the section existed, that such quarry or other interest had been taken into account in assessing the land revenue. Subsection (4) lays down that the quarry or other interest in land involved shall be held to belong to the Crown unless the presumption created by subsection (1) was rebutted in the manner provided in sub section (3), and strictly speaking, it would seem that subsection (4) was unnecessary for the same effect is produced by reading subsections (1) and (3) together. At the most it might have the effect of debarring every other method of rebutting the presumption created by section (1) besides the methods specified in subsection (3). Sub section (2) relates to records of rights completed after the 18th Novem ber 1871, and sets out that if in any such record of rights a quarry or other interest in land is not expressly stated to belong to the Crown, it shall be presumed to belong to the landowners. Here again, for the raising of the presumption it would appear to be necessary that there should be at the date when the record‑of‑rights is prepared, a quarry in existence in the village, and the records of rights should contain no express declaration that it belongs to the Crown ; if both conditions are satisfied, such quarry is to be presumed to belong to the landowners. The subsection would not, in terms cover a case where the ownership of minerals lying in or under the soil was expressly declared to belong to the Government. In that case, there would be no need to rely on any presumption for determining the ownership of the minerals, for they would clearly belong to the Government just as much as a quarry, in existence at the time when the record of rights is completed, would be the property of Government if that was expressly provided in the record of rights. In the present case, there is no mention of any quarry in either of the two places now in question, to be found in the record of the first settlement, and the fact reading wajib‑ul‑arz of each of the succeeding settlement in order, it becomes plain that these quarries have come into existence in fairly recent years. Since the plaintiffs themselves allege they habitually remove stones from these two places, there need that they no hesitation in holding that they constitute quarries in the sense of be no local areas from which stone is regularly removed. The mere absence of mention in the pre‑1871 record of rights, regarding the ownership of these quarries would not, in the circumstances, suffice to create a presumption that the stone belongs to the Crown, under subsection (1) of section 42, Punjab Land Revenue Act. But in the first wajib‑ul‑arz drawn up after 1871, viz., that of 1884‑88, there is a clear stipulation that the Government was to be the owner of all minerals. The words are somewhat as follows :‑ "There is no nazul land or house belonging to Government in our village, nor are there any mines of metal, kankar, lime, or stone coal, nor any ancient buildings or ruins from earlier times. If in the future, any such mines appear, they, will be regarded as the property of Government, but if in the cultivated area, any stone, etc., is found, then kankar, etc., may not be removed before the crop is harvested, or compensation will be paid. If (through quarrying) land is spoilt over a large area so that it cannot be put right with the plough alone, the Government or the contractor will pay compensation. " In the list of minerals contained in the first sentence, stone is not expressly mentioned, but it is clear from the later reference to stone, in the clause saving the rights of the landowners in respect of cultivated crops, that the stipulation was intended to cover stone, and this is also a natural supposition when it is taken into account that kankar and lime are included among the minerals of which the proprietorship was to belong to Government. Learned counsel for the respondents attempted to interpret this clause as covering only such stone as might be found under culturable or cultivated land, but it is obvious that the purpose of this clause in which stone is mentioned is not to limit the right of the Government in respect of stone, but to protect the rights of the cultivators in respect of their crops from depredation through quarrying operations carried on by Government or its contractors. It seems to be quite clear that this wajib‑ul‑arz of 1884‑88 provides for proprietorship in store to belong to Government if and when a stone quarry was ever commenced in the village, even though none was in existence at the time of the settlement. Nothing helpful in clearing the point is derivable from the evidence on the record relating to the third settlement of 1902‑03 but there is an entry, of a somewhat cryptic nature in the forth settlement, upon which learned counsel for the respondents has relied for the view that the Government was no rights in stone. This is paragraph 10 which is set out in the form of two columns. The first column contains an entry somewhat as follows, viz., "the rights of Government in mines of metals, stones, etc., and in ancient buildings, etc." In the second column the following entry appears, viz., "there is only one ancient school building". For the respondents it is urged that this should be taken to mean that the Government had no rights in the stone, but it seems to me that if this entry be read with the 1884 entry, and the further fact be rem embered in the latter entry, it was expressly stated that there were not in existence at that time any mines of metal, minerals, etc., in the village, the entry of 1923‑24 becomes immediately intelligible as showing that even at the date no such mines, etc., had yet come into existence. For the respondents, reliance was then placed on a statement in paragraph 12 of this wajib‑ul‑arz to the effect that from Darawali hill, viz., Khasra No. 1104, villager's and others used to take stone without the permission of the proprietors, and to sell the stone, and the pro prietors did not obstruct them or levy any charge. It was argued that this statement occurring in a document prepared through the agency of Government at a settlement was inconsistent with an exclusive right of ownership in such stone vesting in the Government, but it seems to me that another and more reasonable view of this entry is that it states objectively a certain fact, namely, that a practice of taking stone from a particular area had come into being, and that the proprietors were not interfering with it. The latter circumstance was not unnatural for if the interpretation which I have put upon the 1884 wajib‑ul‑arz be correct. the proprietors would have no interest in this stone, and it would be' for Government to protect its interests. The mere entry' of an objective statement of fact of this kind without the use of any words importing a waiver of its rights by the Government can have no effect upon the rights of Government at all. It might be urged that if a practice of taking stone from this area had grown up, the wajib‑ul‑arz should have mentioned the place as a quarry in paragraph 10, but here again, it seems to me that the application of this description to the land, particularly in a rocky country, could not be expected unless the practice became thoroughly settled and the place took on the appearance of an excavated quarry. The same considerations would apply in the case of the outcrops of stone in Khasra No. 591 ; although the stone is on the surface, it is nevertheless a mineral, and when by regularity of practice in excavating stone therefrom, the place has become a quarry, the Government is undoubtedly within its rights in asserting a claim to levy royalty. The plaintiffs' own case is sufficient to establish in relation to each of the two plots of land that the practice of removal of stone therefrom is sufficiently regular to justify each being regarded as a stone quarry, and consequently it may be expected that in any subsequent wajib-ul‑arz, they will be described as such in any entry corresponding to paragraph 10 of the 1923‑24 wajib‑ul‑arz. It is of course not 'a condition of the Government's right to levy the royaly that either of these places should be, in the sense indicated above, a quarry. For the purposes of the Minor Mineral Rules, mere removal is sufficient, but in order that the place should be mentioned as a quarry in the wajib‑ul‑arz, it would naturally be necessary that, as already remarked. by regularity of localised practice, it should have become a quarry. Accordingly, I am of the opinion that the view taken by the learned Senior Sub‑Judge of the rights of Government in the case as against those of the proprietors is erroneous and that on a true construction of the Wajib‑ul‑arz on which the rights depend, taken with the provisions of section 42, Punjab Land Revenue Act, the claim of the Government to levy royalty in the particular case is well‑founded. I accordingly allow this appeal and setting aside the decree of the learned Senior Sub‑Judge, restore that of the trial Court, but having regard to the circumstances of the case, I leave the parties to bear their own costs throughout. K. M. A. Appeal accepted.